Positive Discrimination – what employers need to know

The recent case of Turner-Robson and others v Chief Constable of Thames Valley Police highlighted the dangers of unlawful positive discrimination in the workplace.

Diversity and inclusion are critical for thriving workplaces, benefiting employees and employers alike. A diverse workforce fosters innovation, broadens perspectives, and enhances decision-making. However, achieving this diversity remains a challenge in many sectors. The Equality Act 2010, includes provisions for ‘positive action’ to help address these imbalances.

Positive Action versus Positive Discrimination

Positive action is distinct from positive discrimination, which remains unlawful in England and Wales. While positive action aims to level the playing field by addressing barriers faced by underrepresented groups, positive discrimination would for example involve favouring a less qualified candidate solely because they belong to a protected group. Positive action ensures fairness by giving all candidates an equal opportunity to succeed.

What does the law allow?

The Equality Act 2010 allows for proportionate positive action for groups of people who share a ‘protected characteristic’ to reduce disadvantage, meet different needs and increase participation.

Within the Act, there are two forms of positive action:

1. General Positive Action (Section 158): This provision allows employers to implement measures to address disadvantages or low participation rates among certain groups. This can include offering training programmes or development initiatives, and running direct communication campaigns aimed at attracting or supporting these groups.
2. Tie-break Positive Action (Section 159): When two candidates are equally qualified, this provision allows an employer to favour a candidate from a disadvantaged or underrepresented group if they believe that doing so will encourage diversity within their workforce. However, this must be proportionate and must not be automatic (i.e. there should not be a policy to do so). It can only be applied when the candidates are objectively assessed as being equally qualified for the role.

What do you need to consider before implementing Positive Action

Positive action should be proportionate, targeted action to alleviate a disadvantage. There are some key steps you should follow which will help you create a successful positive action programme:

• Firstly, consider what evidence you have of the disadvantage, particular need, or low participation among some groups and then look at identifying the root cause of this
• The next step is to identify what you are trying to achieve and the aims of any action
• Once you understand your aims, consider what measures you can implement to achieve these
• Regularly review progress against those measures to assess whether the programme is still proportionate
• Finally, don’t forget to speak to your employees about the measures, employee input will not only help define any programme it will also help them to understand any new initiative

What pitfalls do you need to avoid when considering positive action

Remember that positive action must be proportionate, or it could result in a legal challenge.  To avoid this, employers should:

• Have some evidence to back-up the assertion that they ‘reasonably think’ there is a disadvantage. The evidence does not need to be extensive but should be sufficient to support the decision to implement any programme. 
• Use targets not quotas to meet recruitment needs. Quotas are mandatory and could lead to you making appointments or promotions based solely on a persons protected characteristic and not on merit. Instead, set targets which are more flexible and will allow you to continue to appoint the best candidate.

Examples of Positive Action

There are several things that you can do to increase the diversity in your workforce including recruitment, promotion and retention of existing staff:

• Targeted advertising of vacancies to increase the participation from underrepresented groups in your workplace
• Increasing the number of underrepresented groups in senior management by offering mentoring opportunities to employees from that group
• Targeting work experience for underrepresented groups
• Creating staff groups for employees who share protected characteristics
• Appointing a candidate from an underrepresented group in a tie-break situation

What else can I do?

You can also take more general action to increase diversity in your workplace. Not all action you take will necessarily fall within positive action under the Act, if it does not have a negative impact on another group with a different protected characteristic. Examples of action you can take might include:

• Targeting adverts in publications aimed at underrepresented groups whilst at the same time advertising the role more generally
• Ensuring that your recruitment is inclusive and any job adverts that you create do not use outdated stereotypical language that may deter applicants from certain groups
• Consider using ‘blind applications’ for recruitment avoiding the possibility of bias in the early stages of recruitment

Don’t forget that not all underrepresented groups share a protected characteristic, you may also wish to consider the socio-economic background of your workforce and whether there are measures that could also be taken to increase diversity in this area. You should still be mindful of the impact of any such programmes on people who share a protected characteristic.

For further information on this topic or to discuss how you can implement positive action in your workplace, please contact Lisa Reynolds in our team on 07771 316 123.